State v. March, 46 N.C. 526, 1 Jones 526 (1854)

Aug. 1854 · Supreme Court of North Carolina

46 N.C. 526, 1 Jones 526

STATE v. WILLIAM B. MARCH.

X witness, on a cross-examination, in order to discredit him, may be asked if he had not committed perjury in the State of Georgia.

"Whore there are two counts in a bill of indictment, and evidence of two corresponding oilbnces proved, the Court will not order the Solicitor to select one of the offences and abandon the other. ’ *

This was an indictment for an assault and battery, and false imprisonment, tried before his Honor Judge Dick, at the Fall Term, 1853, of Rowan Superior Court.

There were two counts in the bill of indictment, one for assault and false imprisonment, and the other for an assault and battery. On the trial, a series of violence, by words and gestures, several amounting to assaults and two or three of them to batteries, were proved. During the progress of this series, the defendant went off to his room, in the village where it occurred, and immediately returned and renewed his violent treatment of the prosecutor. Upon this state of the case, the defendant’s counsel insisted that there were two distinct offences proved, and moved the Court that the State’s counsel should be compelled to select'which offence he would go for, and should be confined to that, but the Court refused so to order, to which defendant's Counsel excepted.

In oidor to discredit Hall, the State’s witness, he was asked if he had not committed wilful and corrupt perjury in Georgia,, by swearing that he had not brought negroes into the State, $nd the defendant’s counsel admitted that the question was in no wise pertinent to the issue, except to discredit the witness. The Court decided that this question ivas not a proper one, and the answer was withheld, to which defendant’s counsel again excepted.

Under the instruction of the Court, the jury found the defendant guilty.

Motion for a venire de novo, for the causes of exception above set forth ; rule discharged ; judgment and appeal.

Attorney General, for the State.

Cfraiye, for the defendant.

Battle, J.

The first exception taken by the defendant to the propriety of his conviction, cannot be sustained. The two counts in the indictment were very properly inserted, and it would have been strange had the Court been bound, upon the (defendant’s motion, to have had one of them stricken out, or what was the same in effect, to have compelled the Solicitor t* confine his testimony to one of them only. The other exception is well founded, as the question, which the defendant’s counsel, upon the cross-examination, proposed to ask the witness, Hall, was admissible within the rule of practice established by the cases of State v. Patterson, 2 Ired. 346, and State v. Garrett, Busb. Rep. 357. The object was, as the counsel stated, to discredit the witness, cither by his admitting that ho had sworn falsely, or by his refusing to answer, and, in that view, the question certainly was not irrelevant; for the credibility of a witness, whose testimony is material to the issue on trial, can never be immaterial or irrelevant. If the witness had been asked, whether he had or had not committed perjury, in swearing to an affidavit, in this State, lie certainly would have been protected from answering what might have exposed him to a criminal prosecution in our Courts, and, in such a case, we are inclined to think that the question ought not to be allowed tobe put at all. But our Courts, in administering justice among their suitors, will not notice the criminal laws of another State or country, so far as to protect a witness from being asked whether he had not violated them. We are of the opinion, therefore, that the question was improperly ruled out, and that the defendant is entitled to the benefit of another trial. This opinion will be certified to the Superior Court of law for the county of Rowan, to the end that the judgment may be reversed, and a venire de novo awarded.

Judgment reversed.